ANTHONY J. METZ III, United States Bankruptcy Judge.
Baker O'Neal Holdings, Inc. ("BOHI") and American Public Automotive Group, Inc. ("APAG") filed separate chapter 11 petitions on October 9, 1998. These cases are jointly administered. The Court has authorized the Debtors to employ the law firm of Johnson, Smith, LLP ("Johnson Smith") as BOHI's counsel and APAG's special litigation counsel.
On November 17, 1999, Johnson Smith filed its first interim fee application (the "Interim Fee Application") wherein the requested fees and expenses totaled nearly $800,000. The Official Unsecured Creditors' Committee (the "Creditors' Committee") predecessor to the Plan Committee, timely objected to the Interim Fee Application. At the hearing held on December 13, 1999, the Creditors' Committee agreed to not object to Johnson Smith being paid a portion of the interim fees and expenses requested, but all issues with respect to fees were preserved for hearing on final fee applications.
BOHI, APAG, the Creditors' Committee and Patrick Baker filed a joint chapter 11 plan of reorganization and the amended version of that plan was confirmed on February 23, 2000. Pursuant to the terms of that confirmed plan, the Plan Committee has been established to resume all duties carried out by the Creditors' Committee.
The Plan Committee has filed its Application of the Plan Committee to Employ Expert (the "Application") seeking authority to retain David Dunlap to assist it with analyzing the Interim Fee Application and to provide expert testimony with respect to whether the fees and expenses in the Interim Fee Application are reasonable for actual, necessary services rendered on behalf of the Debtors' estates. The United States Trustee timely objected and a hearing on the Application and the Objection was held on June 28, 2000 wherein the Plan Committee appeared by counsel, George Hopper; the United States Trustee (the "UST") appeared by counsel, Joseph McGonigal. At the conclusion of the hearing, the Court took the matter under advisement.
The UST believes that an expert is not necessary in order to assist the Court as the trier of fact and that the use of experts would usurp "the inherent ability of the Court to determine the reasonableness of services performed". The UST's concerns are well-taken, especially in light of the fact that, as the UST correctly points out, the Court "has the independent authority and responsibility to determine the reasonableness of all fee requests, regardless of whether objections are filed". In re Pettibone Corp., 74 B.R. 293, 299-300 (Bankr.N.D.Ill. 1987). However, even though the Court is "uniformly acknowledged as an expert on the question of reasonable attorneys fees and may make an award without the aid of expert testimony" Matter of Kroh Bros. Development Co., 120 B.R. 997, 1002 (W.D.Mo. 1989), nothing in the Bankruptcy Code or Rules prohibits the employment of expert testimony, if, of course, it aids the Court, as the trier of fact, to understand the evidence or to determine a fact in issue. In re Terex Corp., 70 B.R. 996, 1000-1001 (Bankr.N.D.Ohio, 1987).
Bankruptcy Code Section 330 sets the gauge by which fee applications are measured and allows the awarding of "reasonable compensation" for "actual, necessary services. . .". Section 330(a)(3) provides some guidance with respect to what the Court should consider in determining "reasonable" compensation. Among the factors to be considered are whether the professional's services provided a benefit to the bankruptcy estate and whether the compensation is reasonable based on the "customary compensation charged by comparably skilled practitioners in cases other than in cases under this title".
The fees and expenses requested in the Interim Fee Application are large. This chapter 11 case has involved issues atypical to "garden variety" chapter 11 cases in that the plan was a joint effort among the Debtor, the Creditors' Committee and Patrick Baker, the sole shareholder of BOHI. The filing of the joint plan was accomplished only after long and tedious negotiations among very diverse groups of interests concerning the direction and control of litigation (the primary source of funding for the claims to be paid under the plan) and certain creditors' releases of claims against Patrick Baker, a nondebtor.
This Court has no compunction in stating that it has not had the opportunity to pass upon a great number of fee applications in chapter 11 cases, and certainly none this complex or large. Consequently, it finds that expert testimony will aid it as the trier of fact, especially in regard to whether the time spent on particular tasks was reasonable, and whether the fees charged are in line with that which is charged by other members of like capabilities in the local chapter 11 bar. It will remain the responsibility of the Court to make a final determination as to the allowance of fees; however expert testimony may help the Court in making this determination. The retention here of an expert should not be interpreted that this Court is establishing a policy in chapter 11 cases to permit experts to be hired regarding all fee issues; such determination will be made on a case by case basis, and rarely will a case warrant the retention of an expert. The Court will also give weight to the recommendations of the office of the UST, an office with considerable experience in large, complex chapter 11 cases.
There is no objection with regard to the qualifications of Mr. Dunlap or as to his "disinterested" status. The Court has reviewed Mr. Dunlap's affidavit submitted along with the Plan Committee's Application and finds that he is disinterested and is qualified to serve as an expert in this case.
Accordingly, the UST's objection is DENIED and the Plan Committee's Application is APPROVED; the Plan Committee shall be authorized to employ David Dunlap to act as an expert on behalf of the Plan Committee in connection with the Committee's objection to the Interim Fee Application. Mr. Dunlap shall bill his time at an hourly rate not to exceed $250 and shall be reimbursed for his out of pocket expenses. Said fees and expenses shall be administrative claims of these estates, and shall be allowed in an amount to be determined by this Court upon the filing of an application, and after notice and hearing.